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January 14, 2000


The opinion of the court was delivered by: Scheindlin, District Judge.


Defendants Jose Hernandez, Donna Viniag, Kenneth Schrager and Alan Siegel have filed a number of discovery motions related to this prosecution for Medicare fraud. All four defendants have filed motions to compel the Government: (1) to comply with its obligations under Fed.R.Cr.P. 16(a)(1); (2) to provide a bill of particulars pursuant to Fed.R.Cr.P. 7(f); and (3) to provide sufficient notice of its intention to offer at trial evidence pursuant to Fed.R.Evid. 404(b). In addition, Schrager has moved to compel the Government to: (1) meet its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104(1972); (2) provide statements, made in furtherance and during the course of the alleged conspiracy, of coconspirators that the Government does not intend to call as witnesses at trial; and (3) provide a witness list. The Government opposes each defense motion.


The background of this prosecution, including a detailed summary of the Second Superseding Indictment (the "Indictment"), can be found in this Court's opinion on the Government's motion to quash a number of subpoenas served by Hernandez pursuant to Rule 17(c). See United States v. Nachamie, 2000 WL 12139, at *1-*4 (S.D.N.Y. January 6, 2000) ("Nachamie I").


Hernandez, Vining, Schrager and Siegel all have moved to compel the Government to comply with its obligations under Fed.R.Cr.P. 16(a)(1) and to provide a bill of particulars pursuant to Fed.R.Cr.P. 7(f). Because each defendant's motion contains a number of common elements, I will consider them together. Where applicable, I have noted the differences in the relief requested by each defendant.

A. Government's Obligations Under Rule 16(a)(1)

Rule 16(a) governs the Government's duty to disclose evidence — Rule 16(a)(1) defines the information subject to disclosure, and Rule 16(a)(1)(C) specifically covers documents and other tangible things. This Rule states, in pertinent part:

Upon request of the defendant the government shall permit the defendant to inspect and copy . . . documents . . . which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.

Fed.R.Cr.P. 16(a)(1)(C). Defendants essentially argue that the Government has failed to comply with its obligations under Rule 16(a)(1)(C) because it has produced a huge volume of documents for inspection and copying, somewhere in the range of 200,000 pages, but has not indicated which of those documents it intends to rely on to present its case-in-chief at trial.*fn1

Given the scope of the Government's document production, there is little doubt that it has produced documents in each of the three categories specified in Rule 16(a)(1)(C), namely documents: (1) material to the preparation of a defense; (2) intended for use at trial; and (3) obtained from the defendant. The problem, then, is not one of failure to produce but of failure to designate.*fn2 Defendants' complaint is that because of the enormity of the production, they cannot determine which documents are simply material to the preparation of their defense and which documents the Government intends to use at trial. In short, defendants demand that the Government identify which documents fall into each of the categories outlined above. The clear language of Rule 16(a)(1), however, does not require the Government to identify which documents fall in each category — it only requires the production of documents responsive to any category.

Three district courts have found that the Government has a duty to identify those documents that it intends to use in its case-in-chief at trial, but none of those decisions are supported by the language of Rule 16(a)(1) or prior case law. The earliest case, United States v. Turkish, 458 F. Supp. 874, 882 (S.D.N.Y. 1978), simply stated that it was improper for the Government to "bury the defendant in paper" by making all documents generally available.*fn3 The Turkish court cited no authority for its conclusion that the Government had an obligation to identify the documents it intended to use in its case-in-chief, and it mistakenly relied on another district court case, United States v. Countryside Farms, Inc., 428 F. Supp. 1150, 1154 (D.Utah 1977), which merely held that the Government had a duty to produce such documents. The second case, United States v. Poindexter, 727 F. Supp. 1470, 1484 (D.D.C. 1989), referred to "fairness to the defendant [and] the protection of his rights" as a basis for its order requiring the Government to identify the documents it intended to use in its case-in-chief. But the Poindexter court, which relied only on Turkish and Countryside Farms for its holding, simply compounded the error made in Turkish.

In United States v. Upton, 856 F. Supp. 727, 746 (E.D.N.Y. 1994), the best reasoned of the three decisions, the court finally identified the problem: "The essence of the dispute is not that the government has not produced the documents, but that it has not isolated the documents that are relevant and may be offered at trial which would spare the defendants the task of examining all the documents." The Upton court then relied on Turkish, Poindexter, and United States v. Bortnovsky, 820 F.2d 572 (2d Cir. 1987), to support its conclusion that "the government [must] provide defendants with adequate notice of the allegedly falsified documents upon which it plans to rely at trial in order to allow them to adequately prepare their defense." Upton, 856 F. Supp. at 746-48.*fn4

Upton also fails to ground its conclusion in the language of Rule 16(a)(1) or binding case law. As noted above, neither Turkish nor Poindexter provide adequate support for their holdings. In Bartnovsky, the third case cited by the Upton court, the Second Circuit determined that the trial court had committed reversible error by failing to require the Government to respond to the defendants' demand for a bill of particulars. The court never referred to Rule 16(a)(1)(C), which as noted earlier governs the parties' respective discovery obligations, but relied solely on Fed.R.Cr.P. 7(f), which permits a defendant to seek a bill of particulars in order to identify with particularity the nature of the charge in order to prepare for trial, avoid surprise, and avoid double jeopardy. Bortnovsky, 820 F.2d at 574 (citing Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545(1927)). Thus, Bortnovsky fails to support the Upton court's conclusion that the Government must identify the documents it intends to offer at trial.*fn5

In sum, defendants' motion under Rule 16(a)(1)(C) is denied. The Government has complied with its obligations to produce, for inspection and copying, documents which "are intended for use by the government as evidence in chief at the trial. . . ." Defendants correctly identify the difficult problem that arises when the Government amasses a large number of documents "material to the preparation of the defendant's defense," and produces those documents at the same time it produces the documents it intends to use in its case-in-chief. Because the Government must produce documents meeting any of the three categories listed in Rule 16(a)(1)(C), a defendant cannot determine which documents fall into each category. But a court has no license to rewrite the Federal Rules of Criminal Procedure. While it might be wise for the Advisory Committee on Criminal Rules to consider an amendment that would require a party to identify those documents it intends to use in its case-in-chief, no such requirement now exists in the plain language of the Rule. In the absence of any controlling authority interpreting the Rule as requiring this action, I cannot direct the Government, at this time, to identify the documents it intends to offer in its case-in-chief.*fn6

B. Government's Obligations Under Rule 7(f)

A bill of particulars permits a defendant "to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should be be prosecuted a second time for the same offense." Bortnovsky, 820 F.2d at 574. The decision whether to grant a bill of particulars pursuant to Rule 7(f) rests within the sound discretion of the district court. See United States v. Cephas, 937 F.2d 816, 823 (2d Cir. 1991). "Generally, if the information sought by defendant is provided in the indictment or in some acceptable alternate form, no bill of particulars is required." Bortnovsky, 820 F.2d at 574. In addition, "[t]he proper scope and function of a bill of particulars is not to obtain disclosure of evidence or witnesses to be offered by the Government at trial. . . ." United States v. Strawberry, 892 F. Supp. 519, 526 (S.D.N.Y. 1995) (citing United States v. Salazar, 485 F.2d 1272, 1278 (2d Cir. 1973)).

Hernandez, Vining, Schrager and Siegel all have moved to compel the Government to provide a bill of particulars, arguing that the Indictment does not provide enough specificity and that a bill of particulars will help them sort through the large number of documents produced by the Government. The facts of Bortnovsky, which involved a RICO prosecution for, inter alia, phony insurance claims for alleged burglaries, are instructive in resolving these motions.

The indictment in Bortnovsky charged that the defendants submitted false claims for burglary losses, but failed to identify which of the burglaries the Government intended to prove were phony. In addition to the indictment, the Government provided the defense with 4,000 documents, which undoubtedly included materials concerning the four burglaries the Government ultimately proved were fake. Reviewing these facts, the Second Circuit held that, by failing to identify these burglaries prior to trial, the Government impermissibly had shifted the burden of proof to the defense, which was forced to prove to the jury that all of the remaining burglaries actually had occurred. See Bortnovsky, 820 F.2d at 574-75. In addition, the court specifically held that the Government's production of documents prior to trial did not provide the required adequate notice:

The Government did not fulfill its obligation merely by providing mountains of documents to defense counsel who were left unguided as to which documents would be proven falsified or which of some fifteen burglaries would be demonstrated to be staged . . . In sum, we find that the district court erred by failing to grant a bill of particulars which was vital to [defendants'] understanding of the charges pending and to the preparation of a defense . . . .

Id. at 575.

The teaching of Bortnovsky is particularly relevant here. The Government in this case has produced over 200,000 pieces of paper in hundreds of boxes and files, relating to 2,000 Medicare claims. But it has not yet informed the defendants which of these claims were false and in what way they were false. While the Indictment specifies five ways in which claims were falsified, see Nachamie I, 2000 WL 12139, at *1, no claims are identified by defendant, type of falsity, claim number and date. In addition, the Indictment is less specific with respect to some defendants than with respect to others. For example, Hernandez is alleged to have attended two meetings in 1997, one in Newark, New Jersey, and one in Queens, New York, but little else is pled with respect to his role in the offense or the frauds for which he is allegedly responsible. Under the facts of Bortnovsky, the Government has not yet complied with its obligation to provide adequate notice to the defense.

Indeed, the Government has recognized that it must provide specifics to the defendants well in advance of trial. In its Memorandum of Law in opposition to these motions, and in a recent court appearance, the Government has ...

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